Posts tagged with: Free Exercise Clause

Over the past hundred years few judges have been able to match the wit, wisdom, and intellectual rigor of Supreme Court Justice Antonin Scalia. During his thirty year career he has been an indefatigable champion of originalism (a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment) and a vociferous critic of the slippery “living constitution” school of jurisprudence. When future historians assess his career Scalia will be viewed as one of the most thoughtful, principled, and important jurists of his era.

But even a legal genius can produce a disastrous opinion, and Scalia delivered his worst twenty-five years ago this week in Employment Division v. Smith. As Michael Stokes Paulsen explains, this ruling has “proven to be one of the most devastatingly long-term harmful Supreme Court constitutional decisions of the past half century.”(more…)

Last week, Indiana Governor Mike Pence (R) signed his state’s Religious Freedom Restoration Act. Social media went a bit, well, bonkers. Hillary Clinton tweeted, “Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love #LGBT.” The CEO of SalesForce, headquartered in Indiana, says they will pull out. Tim Cook, the chief executive of Apple, has called religious freedom laws “dangerous” and likens them to Jim Crow laws.

What’s all of this about?

First, the federal Religious Freedom Restoration Act (RFRA) was signed by then-President Bill Clinton in 1993. This act re-instated what is known as the Sherbert Act, in which the Supreme Court:

…set out a three-prong test for courts to use in determining whether the government has violated an individual’s constitutionally-protected right to the free exercise of religion. (more…)

Challenges to religious freedom are not only becoming increasingly more common but are being based on a broader range of social, legal, and political arguments. The one unifying feature of these attacks, claims R.R. Reno, is the desire to limit the influence of religion over public life:

In the world envisioned by Obama administration lawyers, churches will have freedom as “houses of worship,” but unless they accept the secular consensus they can’t inspire their adherents to form institutions to educate and serve society in accordance with the principles of their faith. Under a legal regime influenced by the concept of public reason, religious people are free to speak—but when their voices contradict the secular consensus, they’re not allowed into our legislative chambers or courtrooms.

Thus our present clashes over religious liberty. The Constitution protects religious liberty in two ways. First, it prohibits laws establishing a religion. This prevents the dominant religion from using the political power of majority rule to privilege its own doctrines to the disadvantage of others. Second, it prohibits laws that limit the free exercise of religion. What we’re seeing today is a secular liberalism that wants to expand the prohibition of establishment to silence articulate religious voices and disenfranchise religiously motivated voters, and at the same time to narrow the scope of free exercise so that the new secular morality can reign over American society unimpeded.